Neal Katyal and George Conway have an op-ed in The New York Times arguing that the appointment of Acting Attorney General Whitaker is illegal and that any actions that he takes are null and void. I want to make one observation about their argument.

The Constitution sets forth a way to fill a vacancy created when a Cabinet member resigns, dies, or is fired. The President can make a recess appointment under Article Two, Section Three. In 2014, the Supreme Court held in Noel Canning that the Senate gets to decide when that body is in recess and, thus, when the President can make a recess appointment. This means that if the Senate was in recess yesterday, Mr. Whitaker's appointment is lawful but will expire at the end of the year. But was the Senate in recess yesterday? The Senate was not in session yesterday. but I am unclear whether the Senate's adjournment on Tuesday (scheduled to last until Friday) is a recess.

If the Senate was not in recess yesterday, then I'm having a hard time understanding how the Federal Vacanies Reform Act does not present a constitutional problem as applied to Whitaker's appointment. What is the point of the Senate staying in session to prevent recess appointments if the President can make the same pick under the Act? Moreover, the Act in this instance may be increasing the scope of the President's temporary appointment power beyond what the Constitution would give (less than two months), and I'm not so sure that Congress can do that.

In essence, the Democrats Katyal and Conway are arguing Whitaker as "acting AG" without Senate confirmation does not have the power to make prosecutorial or personnel decisions concerning Special Prosecutor Muller. This contention has absolutely no merit.

Congress has not vested the AG alone with the plenary power to make make prosecutorial or personnel decisions concerning special prosecutors. US Attorneys constantly make special prosecutor decisions and, in this case, Deputy AG Rosenstein made these decisions concerning Muller for months now

Katyal and Conway's citation to the Supreme Court decision in NLRB v. SW General, Inc. is inapposite. The issue in that case was whether an unconfirmed appointee to the NLRB could exercise the plenary powers of that office and the Supremes said no.

Finally, nothing prevents a POTUS from assigning these jobs to an "acting AG." Both Obama and Trump issued executive orders creating an order of succession at the Justice Department to perform these jobs and others in the absence of a confirmed AG.

Bart: I'm neither a lawyer nor an American, and even I know that there is no such person as "Special Prosecutor Muller." There is a quite well-known gentleman called Robert S. Mueller III, and the title given him in his letter of appointment is "Special Counsel for the United States Department of Justice."

The Katyal/Conway contention is that Whitaker's appointment is unconstitutional and therefore void. Trump can't lawfully order him to make a cup of coffee using the special monogrammed AG mug. (He can still presumably use the GSA mugs issued by the thousand to lower-level peons in the public service.) You don't address this claim at all.

But for Trump's "appointment" of Whitaker, who would be the Acting AG resulting from the "firing" of Sessions? Doesn't the DOJ have provisions for this?

By the Bybee [expletives deleted, despite Gina], Trump's "appointment" of Whitaker in the context of Trump's "firing" of Sessions might develop into an obstruction of justice charge against Trump, and perhaps Whitaker, if Mueller is neutralized. Whitaker has a paper trail that ties into Trump's twitter trail. This is more odorous than Harding's Teapotdome. SPAM is now fully enamored of Trump as fascist.

As I notes above, the POTUS establishes Justice's order of secession by executive order. Shortly after gaining office, Trump issued an executive order changing the previous Obama order and placing the Deputy AG as next in the line of secession as "acting AG." With his appointment of chief of staff Whitaker to the position, Trump modified the order.

For the last time, Congress has no power to criminalize the plenary executive power of the POTUS to fire his subordinates as "obstruction of justice."

The Katyal/Conway contention is Whitaker cannot exercise the powers of the AG without Senate confirmation, a position I doubt they took before the Supreme Court stopped the Obama NLRB appointee from exercising the powers of that office.

In any case, the problem with the argument as applied to Mueller is the AG does not exercise plenary power over special counsels. As I noted, lesser officials like the Deputy AG and US Attorneys also exercise these powers.

Rod Rosenstein is the Acting Attorney General, pursuant to 28 U.S.C. Section 508. Period, full stop. Ignore Bart’s confused misstatements of the law. Also ignore the OLC opinion that seems to suggest that the FVRA is somehow an alternative to Section 508. It is just as confused.

As for resolving any conflict between the Federal Vacancies Reform Act (FVRA) and 28 U.S.C. Section 508, the former was enacted after the latter and takes precedence. The FVRA precluded the continued enforcement of 508 because it listed offices excepted from the act and did not include the AG as one of them.

Thus, both Obama and Trump expressly acted on the authority granted to them by the FVRA, not 508, to create their own order of succession when the AG resigned. See 5 U.S. Code § 3345, as well as the Obama Executive Order 13762 and the Trump Executive Order 13775.

Trump and our bipartisan mandarin political establishment are engaged in an increasingly bitter and personal cultural war. The GOP establishment so loathes Trump it has increasingly taken Democrat positions purely to spite him. I don’t even recognize the #nevertrump Weekly Standard anymore.

When mandarins talk about Trump breaking “norms,” they are speaking of his trampling of their self-granted power prerogatives. This POTUS does not recognize the independent fiefdoms the bureacracy has carved out for itself.

This discussion is a perfect example. Trump overruling “career professionals” or firing a disloyal FBI director or AG does not create a “constitutional crisis.” The Constitution expressly vests all executive power in the POTUS and the idea of a bureaucracy, AG or special prosecutor exercising independent executive power is a self-serving bureacratic fiction and an assualt on constitutional govenrment. The phrase “I serve at the pleasure of the President” is not politise, but rather a statement of constitutional fact.

@burnsbesq: 28 U.S.C. 508 says that "for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General", and section 3345 of title 5 says (part (1)) that "the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346".

But then the section continues [(2) ... ] (3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if— [conditions-satisfied by Whitaker].

So it's fairly clear that Whitaker, not Rosenstein, is Acting Attorney General.

SPAM finds the "Mandarin Orange" quite appealing. And SPAM would proudly jump in a hot tub with Acting AG Matt "Mr. Clean" Whitaker during recess. When recess is over, SPAM can return to his challenging DUI practice with a new Governor in his Mile High State (of Mind) having wet dreams of the late 19th century's The Gilded Age; but will Trump nominate Mr. Clean for real and actually surface through hearings potential obstruction of justice issues? Maybe there's room in that hot tub for Sen. Lindsey Graham (Cracker, S. Car.).

Recall Trump's "I alone can fix it." The "fix" is in for SPAM's "Above the law" "Mandarin Orange" President Trump, whom SPAM had over and over and over in support of the Cruz Canadacy referred to candidate Trump pejoratively as a fascist. Now, SPAM has swallowed the leader.

Speaking of Sen. Raphael Cruz, he needed, begged, Trump to come to TX to support his reelection campaign, despite Trump having, during the campaign labeled Cruz as "Lyin' Ted," accused Cruz's father of possible involvement with the assassination of JFK, and insulting the appearance of Cruz's wife. Yes, Canadian Cruz was in his Texas mode, on his knees, "ALL HAT AND NO CAJONES."

SPAM's efforts to wax philosophic lacks any buffing. Nothing could put a shine on SPAM's lockstep with Bush/Cheney, especially with the invasion of Iraq that continues to roil the Greater Middle East. SPAM was then more in line with:

"Ours not to reason why, ours but to do and die." Alfred Lord Tennyson

Bush/Cheney was SPAM's team, the Amoral team. No formal declaration of war by Congress, no WMDs. Almost bankrupting America with the Bush/Cheney Great Recession.

SPAM has locked himself into the late 19th century's The Gilded Age as America's best days, serving as SPAM's blinders for the real world since the Robber Barons. That's why SPAM is enamored now with fascist Trump's corruption.

BD: Trump is the third POTUS since I started posting at Balkinization and, unlike many here including yourself, my views of the Constitution’s grants of power to the POTUS has not changed with the team.

Shag: Bush/Cheney was SPAM's team, the Amoral team. No formal declaration of war by Congress...

Perfect example of my point.

Bush went to Congress and obtained bipartisan declarations of war/AUMFs for both Afghanistan and Iraq. You whine that Congress did not use the magic words "declaration of war" in their authorizations to go to war. However, when Obama unconstitutionally goes to war in Libya without a farethewell to Congress, you are silent.

Why don't you try Jack's "national security state" or law enforcement next? I have no court hearings or client meetings and can continue to recount your hypocrisy and that of others here any time you like.

"The Katyal/Conway contention is that Whitaker's appointment is unconstitutional and therefore void...You don't address this claim at all."

Yes, as you might expect, Bart dissembles at the very start. As the op/ed states clearly: "Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid."

"Bart is also wrong when he calls the authors "democrats." George Conway, Kelly Anne Conway's husband, has been a Republican since before Bart was first wrong."

I caught that immediately too. Conway made his bones clerking for a Reagan appointee, he was on Trump's short list for solicitor general. Bart, like any good Stalinist, only thinks in terms of who is on what team at the exact moment, and at this exact moment Conway disagrees with his team's coach, so he's always been the enemy. We have always been at war with Conway.

"It's a pedantic point, but draws some attention to how Bart's judgement is not exactly objective."

So SPAM'S DUI business is drying up, providing him with time to troll this Blog? I thinks that's been his situation since he began commenting at this Blog.

SPAM at times claims to be a textualist. Article I provides the Congress with the power, and duty, to declare war when appropriate. Congress in the past has known how to exercise this power. The words in the Constitution have meaning. AUMFs are not the same as a declaration of war. Congress did not use those words. Consider how the AUMFs were subsequently rationalized after Iraq was conquered. Was Iraq responsible for 9/11? Bush/Cheney Administration lied. But Congress can say it did not declare war under Article I.

Perhaps with all this time on SPAM's hands he can jump into that hot tub but keep his computer dry while having wet dreams of The Gilded Age.

"Trump and our bipartisan mandarin political establishment are engaged in an increasingly bitter and personal cultural war. "

When all you have is a hammer...

Bart has to insist that this is a culture war between elites and non-elites, because his cause's current leader is behaviorally so out of the ordinary that many within the cause have called him into question. Since the cause (team) is Bart's only principle, this must be reconciled for him. The heretics must be burned, so to speak.

So Bart imagines a 'mandarin class' (note the propagandist use of language here) as the bad guys. What makes this 'mandarin class?' Bart has no definition other than 'people who currently disagree with the leader of my cause.' He can't invoke something like credentialism, education and privilege as criteria, because he's cause/team bound to support people like Trump (born with incredible privilege, Ivy League education) and his loyalists (look at Kavanaugh! elite prep schools, Ivy League education, and entire life lived working in 'establishment' positions).

"the idea of a bureaucracy, AG or special prosecutor exercising independent executive power is a self-serving bureacratic fiction and an assualt on constitutional govenrment"

Bart displays his fascist/authoritarian chops here. If there is no independence between the DOJ and POTUS then DOJ is essentially POTUS's secret police/army. And Bart is down with that.

Of course. Bart's talk about 'liberty' has always been a mask, a sheepskin over his authoritarian wolf skin. Notice how blithely he dismisses the actual chattel slavery in our history. 'Liberty' has only propagandist use for an authoritarian propagandist.

I noted, through the Federal Vacancies Reform Act (5 U.S. Code § 3345), Congress expressly authorized POTUS to appoint an "acting AG," presumably using their confirmation power to do so.

However, there is no need to even get the the constitutionality of FVRA. My points were Congress has not vested the AG with sole plenary power over special counsels and the POTUS can appoint a lesser officer to determine the scope and duration of a special counsel investigation. Indeed, the Deputy SG has made these determinations for special counsel Mueller over months.

"the POTUS answers to the voters and lesser executive officers answer to the elected POTUS."

This view (which was Woodrow Wilson's btw) allows for not only four year dictatorships, but longer ones, because the executive can use federal law enforcement as a secret police to disable their political opponents.

"This view (which was Woodrow Wilson's btw) allows for not only four year dictatorships, but longer ones, because the executive can use federal law enforcement as a secret police to disable their political opponents."

You hardly need to adopt that view in order to do that. You just need to corrupt the DOJ. In fact, this is exactly what Republicans are complaining about, when it comes to the FBI spying on the Trump campaign.

BD: "the POTUS answers to the voters and lesser executive officers answer to the elected POTUS."

Mr. W: This view (which was Woodrow Wilson's btw) allows for not only four year dictatorships...

You are clueless.

A dictator exercises absolute power (legislative, executive and judicial) to rule by decree.

Our Constitution divides these powers between an elected Congress and POTUS, which appoint and confirm the judiciary.

The fallacious reasoning behind calling POTUS a "dictator" because the Constitution vests him or her with all executive power could equally be used call Congress a dictatorship because the Constitution vests it with all legislative power.

The only example of absolute power in our government today is the absolute bureaucracy, which you argue should not answer to the POTUS.

...but longer ones, because the executive can use federal law enforcement as a secret police to disable their political opponents.

Law enforcement is checked by a Congress enacting the law and a judiciary enforcing due process of the law.

In any case, I do not recall you objecting to Obama and Clinton weaponizing the FBI and NSA to spy on the 2016 Trump campaign without probable cause of a crime.

Exhibit 2 of folks here applying different constitutional standards to their team of Democrats and to the opposing team of Republicans.

It seems that Brett has performed his Bwana Nationalist role over at the VC on a number of posts and is now ready to jump in the hot tub with SPAM and Mr. Clean. No, there's not enough soap for them to come clean. That trio would welcome certain of Woodrow Wilson's views.

By the Bybee [expletives deleted, despite Gina], did Congress in 1917 "declare AUMF" under the N & P clause?

SPAM seems to have a pipeline to Trump about such interviews. Or is it a hot tub pipe dream for his get out of rural CO card? Perhaps SPAM might opine as to whether a nominee will be sent to the Senate before or after the new Congress convenes. I understand the Chair of the Judiciary Committee will change from Sen. Grassley (Corndog, Iowa) to Sen. Graham (Cracker, S. Car.). Flake and other outgoing Republican Senators could be a problem. Meantime, Don, Jr. can safely come back to America.

Recess has to be ten days as a rule to count per SCOTUS. Four justices went further for intra-session recesses; don't count. With length of time if confirmations these days, question at hand is more an issue especially for top offices.

Whomever Trump nominates as AG should be in sessions with psychiatrist for dependency. Who remembers AG Daugherty from the Harding Administration? I do, I do. He got in big doo-doo. A subservient DOJ leads to corruption. According to the Greeks, the fish rots from the head down. Corruption in the late 19th century The Gilded Age. Corruption in the Roaring Twenties. Now The Second Gilded Age with Trump.

Bill Maher last night on "New Rule" revisits the Trump "dick-taterhead" checklist adding the appointment of Acting AG Mr. Clean (aka Il Duce). But SPAM was more prescient when he was on deck with the Cruz Canadacy during the 2016 campaign when SPAM repeatedly referred to Trump as a fascist (despite since swallowing his dear leader, hook, line and sinker).

Assuming SPAM is still in the hot tub, maybe he's not aware of this headline from the WaPa online:

"Trump distances himself from Whitaker amid scrutiny over past comments and business tiesThe president falsely claimed he did not “know” his acting attorney general as the White House struggled to contain a new political uproar"

Mr. W: There is no 'Democrat media' in the same sense that there is a GOP media (FOX).

Yet another example of my team right or wrong.

Your news media is partisan, but mine isn’t. Nyah, nyah.

WTFU. The press has been partisan since the dawn of the Republic. There is no non-partisan news media. If you want to stay reltively informed, and know what your political opponents are up to, consume multiple sources critically.

Surprise, surprise! So SPAM no longer looks upon Trump, as President, as a fascist? But one doesn't have to look too far back in the archives of this Blog post-Trump's election for SPAM's continuing to view Trump as a fascist. Perhaps SPAM is prepared to give up the lucre of his DUI defense counsel practice in his rural small mountaintop community for some appointment from Trump, especially since DUI seems to be drying up in Ganjaland. Maybe that hot tub shrinking affected SPAM's thinking.

What SPAM is saying, in effect, in his 11:40 AM suck-up to Trump is that generally American presidents pre-Trump governed as fascists.